Rule of Law, Judicial Review and the Sunlight of Scrutiny

Mr Speaker, much of what we enjoy today in Singapore is owed to the strong adherence to the Rule of Law. Judicial review by the Supreme Court represents an important tenet of the Rule of Law that all power must have legal limits.

In our Westminster-styled Government, Executive action is generally reviewable by the Judiciary, which is vested with judicial power under Article 93 of the Constitution. Article 4 of the Constitution states that any law enacted by this House which is inconsistent with the Constitution shall be void.

Judicial review does not mean that the Court substitutes its decision for the Executive's decision. What it means is that the Court has a right to satisfy itself of the legality, rationality, and procedural propriety of the Executive's decision. If it is not satisfied, it can strike such action down as being of no effect.

In comparison, Parliament, to which the Executive is accountable to, does not have such a power, although it has other tools. Also, structurally, the Executive is drawn from the majority of elected Members of Parliament in Parliament; a feature that Walter Bagehot referred to as the "efficient secret of the English Constitution" upon which the Westminster-styled Government is based on.

In Singapore, most Government actions are subject to judicial review. For example, it is well established that the Minister's decision to detain a person under the Criminal Law (Temporary Provisions) Act or CLTPA, in the interest of public safety, peace and good order is reviewable by the Court in certain respects. It is noteworthy that even where public safety and peace are at threat, is recognised that the Minister's decisions based on such matters may be judicially reviewed by the Court. This provides an important safeguard against abuse of power and strengthens the Rule of Law in Singapore.

There are, however, a handful of statutes containing provisions that expressly restrict or exclude judicial review. In my speech, I would refer to these clauses as ouster clauses. The big elephant in the room, of course, the Internal Security Act or the ISA. Given the impact of such provisions on the Rule of Law, I think it is desirable that this House regularly conduct a review of the ouster clauses against current circumstances to ensure that there continues to be a need for such exceptions to exist and strike an appropriate balance between efficiency and accountability.

In my respectful view, it is important for each generation of political leaders and people to find their own equilibrium of what our people would accept without question, under what circumstances and towards what ends.

Fellow Singaporeans' desires and expectations are by no means static. Our Prime Minister, in his speech as Secretary-General of the PAP at its 36th Ordinary Party Conference in November 2020, acknowledged this. He stated that Singaporeans today have expressed a desire to, amongst others, re-examine basic assumptions, look beyond, tried and tested ways of doing things and have greater checks and balances. He also said that the PAP Government must change and respond to these desires and expectations.

Law derives its power not merely from the fact that it is enforceable by the state apparatus, but, fundamentally, from our people's willingness to accept the law and the authority of our institutions as legitimate.

Today, our people trust all three pillars of our Government to enact, use and enforce laws to ensure that we remain a fair and just, safe and secure society. We must not take this trust for granted. As Members of this House, we are the people's representatives and part of the eco-system that ensures our people's acceptance of the legitimacy of laws and institutions.

Before looking at the statutes in question, I think it is worthwhile mentioning that, thus far, the Government has taken a careful approach to clauses ousting judicial review. Even in relation to the CLTPA, in respect of which, hon Members may recall, the Court of Appeal issued a judgment quashing the Minister's detention order in 2015. The hon Minister, when he moved the Bill in this House 2018 to extend the validity of CLTPA for another five years, he made it very clear that his decisions under the Act may continue to be judicially reviewed on the three established grounds.

I read this as a deliberate decision on the part of the Government to keep the exceptions to what it considers to be necessary in public interest. I commend this approach.

With that, let me move straight to the ISA. I wish to state upfront that I believe that there remains a cogent basis to maintain the status quo for ISA. The ISA is an extraordinary piece of legislation that is aimed at ensuring Singapore's stability and security. I closely read the debate introducing the ouster clause in the ISA in 1989, particularly the speech of the then Minister of Home Affairs, the hon Prof S Jayakumar.

In a bitingly frank response to points made by hon Members of Parliament, he recognised that there could be a prospect of the powers under ISA being misused. At the same time, he stated that ISA deals with issues where national security is involved and putting a Court to scrutinise exercise of powers will be tantamount to giving the Court, an unelected body, the final say on such matters. That, in the scheme of things, is not desirable.

In the result, Parliament not only passed the legislation introducing the ouster clause into the ISA but also introduced Article 149(3) of the Constitution that expressly provides that "nothing in Article 93 shall invalidate" anti-subversion legislation, of which ISA is one.

That is not to say that the Minister will be given a carte blanche. In lieu of Court scrutiny, both the ISA and the Constitution prescribed safeguards, such as the involvement of an Advisory Board and the elected President. There could also be judicial review on the ground of non-compliance with procedural requirements under the ISA. In short, the ISA does not operate in darkness. There are checks and balances that involve, amongst others, the office of the Elected President.

Just a few weeks ago, we saw the Minister for Home Affairs exercise his detention power against a self-radicalised young person professing to be Christian who planned to attack Muslims with a machete at two mosques. Fellow Singaporeans would have been greatly disturbed by this attempt to sow discord and hatred between religious groups here. This case demonstrates that the continued relevance of ISA against the context of the ever-growing threat of radicalisation, extremism and terrorism on our shores.

The hon Minister for Home Affairs reminded us poignantly that these extremists "have to succeed only once, but ISD has to succeed every single time". Having regard to all these circumstances, I do not advocate a rebalance in favour of more judicial scrutiny for Executive action under the ISA.

Outside the realm of national security, we have statutes that contain ouster clauses excluding judicial review. Most times, the Parliamentary intention in enacting these ouster clauses is to allow the Executive to move quickly and efficiently and make final and dispositive decisions in national interest.

Let me demonstrate this by referring to three statutes: the Charities Act, the Immigration Act and the Employment of Foreign Manpower Act.

The general purpose of the Charities Act is to register charities and regulate the conduct of their fund-raising activities. Under the Charities Act, the Commissioner has the power to prohibit persons from conducting any fund-raising if he is satisfied that the fund raising should not be conducted, generally, in public interest. His decision and that of the Minister, in this regard, is not subject to judicial review save in relation to compliance with any procedural requirement.

Senior Minister Teo, in his capacity as Minister of State for Finance, explained in 1994 when moving the Bill as follows, and I quote, "Clause 40 will ensure that the merits of the decision cannot be reviewed. This is to avoid a situation where interested parties can through the Courts frustrate Government's decision to reject an application for a fund-raising permit."

Under the Immigration Act, the Government has the power to deal with immigration into and departure from Singapore. Exercise of such power, however, is not subject to judicial review. In justifying this position, the then Minister for Home Affairs, Prof Jayakumar stated in 1993 as follows, and I quote, "The intention of this amendment is that the merits of the immigration decision, that is, whether it is right or wrong, cannot be reviewed. This is to avoid a situation where the Courts can frustrate Government's decision to expel aliens under the Act or other immigration decisions concerning aliens."

Under the Employment of Foreign Manpower Act, decisions of the Minister and the Controller of Work Passes in relation to the issuance, suspension and revocation of work passes are not subject to judicial review. Dr Ng Eng Heng, then the Minister for Manpower in 2007, explained its rationale as follows, and I quote, "For consistency, certain provisions that are currently under the Immigration Act are also replicated under this Act, including the exemption of the decisions of the Minister and the Controller of Work Passes in relation to the issuance, suspension and revocation of work passes from judicial review."

My concern here does not arise just because judicial review is ousted. I recognise that there could be areas outside the realm of national security where it may well be desirable in national interest for the Executive to act quickly and efficiently. However, what is as important is that we need ensure that powers vested by Parliament on the Executive will not be abused. This will be consistent with Singaporeans' desire that there should be more checks and balances.

We also need to explain to Singaporeans why a different approach is mandated when dealing with such matters whereas when it comes to Executive action on important matters, such as public safety, peace and good order under the CLTPA, it may be judicially reviewed.

Additionally, from time to time, powers vested with the Executive under statutes that exclude judicial review may be used in an evolving variety of scenarios. For example, today, under the Employment of Foreign Manpower Act, the Controller of Work Permits and the Minister use the powers not only to determine whether a non-Singaporean should or should not stay in Singapore – which was the focus of the debate in Parliament, when the clause was first enacted – these powers are also used now vis-a-vis additional developments that have arisen in our local context to penalise employers who have failed to discharge their duties to ensure their employees comply with SHN requirements, breached the Fair Consideration Framework, or treated workers unfairly when terminating their services, for example, disguised retrenchment.

For these employers, MOM has withdrawn work pass privileges. In other words, the target of the powers are no longer aliens, but in certain situations, it may extend to Singapore-based businesses and companies.

I have absolutely no quarrel with the invocation of the powers against such errant employers. However, given the variety of circumstances in which these powers are currently used, it would be apposite for Parliament to consider whether the original rationale behind the ouster clause should be extended to cover these new circumstances.

Personally, I am not convinced with the utility argument that has been advanced in Parliament to justify ouster clauses, that persons subject to the Executive’s order may abuse the Court's process by commencing unmeritorious judicial review action just to frustrate legitimate Government action. I would point out that that can happen even now since there can be judicial review on the narrower ground of procedural propriety. More importantly, our Court is well-equipped to handle unmeritorious cases that amount to an abuse of process. This may, amongst others, sanctioning not just the party but the counsel representing the party.

There is another reason why I think it is a good time to conduct the review of ouster clauses. There is a recent decision of the Supreme Court we in this House should take note of.

In 2019, a five-judge bench of the Court of Appeal handed down its decision in Nagaenthran. In that case, the appellant, who was convicted for the capital offence of drug trafficking, sought a judicial review of the Public Prosecutor's decision not to issue a certificate of cooperation to him. This has an impact on whether the appellant would be imposed a death sentence or have that substituted with life imprisonment. It was argued on behalf of the Public Prosecutor that the provision in the Misuse of Drugs Act allowing the Public Prosecutor the discretion to decide whether to issue the certificate ousts judicial review.

In a unanimous decision, the Court held that the provision which the Public Prosecutor relied on was not an ouster clause. Significantly, however, the Court observed, as obiter, that if the clause was meant to exclude the Court's jurisdiction even if the Public Prosecutor exceeded his limits of power, that provision "would be constitutionally suspect for being in violation of Article 93 as well as the principle of separation of powers." The Court proceeded to review the Public Prosecutor's action and held that there was no basis to interfere with his decision. As a result, the appeal was dismissed.

I accept that the Court in Nagaenthran did not decide on the validity of any ouster clause. However, given the reasoning of the Court, this may be an opportune time for the Government to review its position on ouster clauses in the name of good governance and the rule of law. In this regard, I quote the hon the Chief Justice who stated as follows extrajudicially: "In the final analysis, the robustness of a nation's rule of law framework depends greatly on how the other branches view the Judiciary and whether it in turn is able and willing to act honestly, competently and independently."

In conclusion, let me say that I am fully aware of the advantage that comes with ensuring that our Executive move speedily, flexibly and effectively to decide matters in the national interest. Our experience as a nation shows that such ability on the part of the Executive is vital given our country's well-known vulnerabilities. I also appreciate that the rule of law should not be viewed a panacea but is a means to an end which is to help to build a fair and just society, a system that works and a vibrant economy that will enable Singaporeans to realise their dreams.

I am not advocating a Western style of rule of law that may not suit our circumstances. My basic concern is to address the desire of Singaporeans for greater checks and balances. For statutes containing ouster clauses that do not deal with issues of national security, I would suggest a review. It may well be that for these statutes, we may have to emulate the approach taken in the ISA or the CLTPA or make relevant amendments to the Constitution to clarify the role of the Judiciary in reviewing the ouster clauses passed by the Legislature and the Executive action in question.

Ultimately, I believe that ensuring the sunlight of scrutiny on Executive action, be it by the Court or another high office, will strengthen the legitimacy of our laws. Our people will be able to rely on the authoritative findings of these institutions to satisfy themselves of the bona fides or otherwise of Government action and that there are, indeed legal limits placed on the powers vested in the Government.

This is how the Government should be held accountable. This is what Rule of Law means. And this is how we ensure a bright future for our country.

Thank you, Sir. Sir, in India, some commentators have said judicial activism has become judicial overreach, into policy areas. We have set out one example in the handout.

Judges of the Supreme Court have themselves commented that the Judiciary has strayed into the executive domain. There is a lengthy list, as Members will see from the handout, including nursery admissions, the number of free beds in hospitals, the size of speed-breakers on roads, and many others. I think Members will agree with me that for Singapore, it is best if these matters are left for the Executive to determine.

In Australia, the Government there has long been beset by litigation over immigration matters. Judicial review has been used by non-citizens to prolong their stay, at the cost of public resources.

Australia’s former Minister for Immigration Philip Ruddock has observed that such politically controversial matters, which involve competing objectives and values, were for Parliament to determine as representatives of the people, and I agree.

In England, former Supreme Court Judge, Lord Sumption, has detected, and I quote, "a noticeable change of judicial mood" in recent decades. The "special cases", once thought to be beyond the courts’ purview, such as foreign policy, "have one by one yielded to the power of the judges", unquote.

It is therefore no surprise that civil servants in the UK are now given a detailed 104-page guide – aptly or, perhaps, sardonically – titled "Judge Over Your Shoulder", or "JOYS" to help them assess legal risks. They have also had two rounds of law reform review on judicial review twice in the course of the last eight years.

Lord Sumption himself notes that this state of affairs is a product of political reality in the UK – judges have attempted to fill the gap left by politics, as the latter has lost its prestige. He makes a similar observation of the United States, and what he refers to as "distortions" in their governance structure that have resulted from political gridlock.

Sir, these approaches elsewhere are informed by different social and historical contexts. In Singapore, we have not gone down this route. We have been, and must remain careful to operate our system to maintain trust, and to keep a constructive balance between the three branches of Government.

The approach taken by our Courts has been instrumental to the success of the Singapore approach. Singapore Courts have been careful to strike an appropriate balance, between preserving the Government’s ability to act decisively in the public interest, whilst imposing adequate safeguards to check against unlawful action. It is a delicate but very important balance, that not many other jurisdictions have managed to strike successfully.

This judicial philosophy is best encapsulated in our Chief Justice’s remarks in a 2018 lecture, and I quote, "… in Singapore… we have found that executive power can best be checked when courts eschew politics and secure a relationship of trust and respect between the three branches by recognising and maintaining the legitimate space of each.

… First, it means that Courts should not see themselves as antagonists whose role is to obstruct governmental action, but rather as equal partners with the other branches in the common project to promote efficient administration and good and proper governance, which the Judiciary contributes to by upholding the rule of law. Second, it means that the Judiciary should not be diffident about performing its constitutional role when called upon to invalidate unlawful action…

The difference is between a paradigm of confrontation and containment informed by mutual distrust and self-preservation and one of partnership and cooperation within a framework of governance and legality.”

The principles of administrative law in Singapore give expression to this overarching approach and is based on two fundamental principles flowing from the constitutional separation of powers.

First, the Executive must act within the law, and it is the role of the courts to say what the law is. The Courts can, in general, review executive action on three grounds: illegality, irrationality and procedural impropriety. Each of these grounds leaves wide latitude to the Executive.

Second, and equally importantly, the Courts recognise that the exercise of executive authority is ultimately the responsibility of the Executive and not the Courts. It is the Executive which is vested with executive authority under the Constitution; has an elected mandate, which is accountable to Parliament and at the polls; and has the institutional competence and resources to make judgement calls between the competing considerations that often arise in policy decisions. For this reason, the Courts have repeatedly emphasised that they do not substitute their judgment for that of the Executive, and are concerned with the decision-making process, and not its merits.

I refer Members back to part 2 of Annex 5, which sets out these key principles, and we agree with the approach that the Courts have taken. It avoids the quagmires often seen overseas, when judiciaries step into the spheres of other branches of government. It leaves matters that are rightly determined by democratically elected bodies in the hands of these elected representatives. And to paraphrase Mr Ruddock, politically controversial matters, which involve competing objectives and values, should be determined by Parliament.

Mr Pillai has referred to clauses which exclude or restrict one or more of the grounds for judicial review. The Court has held that such ouster or privative clauses are not per se wrong.

We have also taken a principled and calibrated approach to the use of such clauses, and they are proposed only after careful consideration of the policy objective behind each of the proposed clauses; whether alternative legislative tools may be employed to achieve this; and whether the clause may be calibrated to restrict only some of the bases for judicial review. Thereafter, they are subject to rigorous debate in this House, in Parliament, and passed into law with Parliament’s assent. Through this approach, trust – not just within the branches but vis-à-vis each branch and the population at large – has been nurtured and sustained.

Mr Pillai has referred to both the Internal Security Act (ISA) and the Criminal Law (Temporary Provisions) Act (CLTPA), which both provide for powers of detention. Such powers, as Mr Pillai has acknowledged, are necessary, to allow for pre-emptive action, to safeguard national security, and because criminal prosecution may not be possible, for example, due to evidential difficulties of admissibility. In these circumstances, Parliament, in accordance with its legislative power, vested the discretion to exercise powers of detention with the Executive.

Mr Pillai has also cited various other non-security related legislation containing privative clauses, notwithstanding that these are outside the realm of national security, where speed and efficiency are also critical considerations.

For a globalised city-state, thriving on open borders and human resources, immigration and foreign manpower – two areas that Mr Murali cited – are key areas of concern. They require a careful balancing of sensitive and polycentric considerations, such as foreign relations; transborder crime; economic and manpower planning; and protection of businesses and families.

Immigration and foreign manpower have serious implications for our society. The experience of Australia, on immigration challenges in Court, as explained in the handout at part 1 of Annex 5, illustrates why we take the approach that we do.

We have already seen xenophobia, social schisms develop in other countries and we are not immune to these pressures. It would not be appropriate to litigate such matters because the Courts do not have institutional capability to know of, to consider and to balance the many considerations and concerns involved.

Resolution of policy judgements by the Courts also lacks the democratic legitimacy of Parliament. As the Chief Justice noted in the lecture I mentioned earlier, Courts are not especially well placed to answer such social, economic and political questions.

Mr Pillai has asked for a review of the ouster clauses on our statute books. I would like to assure him that we already do this regularly. We will continue to review the need for such clauses and, where necessary, carefully calibrate these clauses to the intended policy objectives behind such an ouster.

I would add that we have, in fact, on occasion repealed ouster clauses when they are no longer necessary. This was the case for the former section 14(5) of the Employment Act.

Sir, to conclude, I would reiterate that of all three branches of Government, the Executive is best placed to make decisions and act quickly on policy matters. It is accountable to Parliament and to the people of Singapore.

We must continue to foster a system of governance which maintains a clear eye on outcomes – to improve our citizens’ lives – I refer Members again to the handout on Singapore’s social and economic indicators. This is proof of what we have achieved for Singapore with our political and governance system. It demonstrates that our political and judicial system promotes good governance and the rule of law, with clear and tangibly positive outcomes for Singapore. Thank you, Mr Speaker.